SANJAY SEHGAL Vs. SHRADHA KASHIKAR AND OTHERS

JUDGEMENT

(1.) The instant petition filed under Article 227 of the Constitution of India takes an exception to the order dated 24.10.2017 passed by 11th Additional District and Sessions Judge, Bhopal in Civil Suit No. 409-A/2010, whereby the application under Section 65 of the Indian Evidence Act, 1872 (hereinafter referred to as "Act") filed by the petitioner has been rejected.

(2.) Brief facts of the case succinctly, are that the petitioner entered into an agreement to sale with the respondent no.1 on 30.08.2007 for purchase of total area of land of two khasras admeasuring 4.68 acres. In pursuance to the same, it is pleaded that the petitioner had deposited a sum of Rs. 20,00,000/- with the respondent no.1 through cash and cheque. The petitioner filed a Civil Suit on 13.09.2010 for Declaration, Specific Performance of Contract and Permanent Injunction against the respondents. During the trial, he filed an application under Section 65 of the Act on 16.08.2017 to admit the photo copy of the agreement as 'secondary evidence'. By the impugned order, the said application has been rejected, on the ground that the petitioner has not mentioned in the plaint filed for Specific Performance of Contract about the possession of the document in question i.e. agreement dated 30.08.2007 and it was also not mentioned that the document was lost.

(3.) Learned counsel for the petitioner submitted that the learned trial Court has failed to appreciate the affidavit dated 13.09.2017 filed by the respondent no.1 wherein, very categorically it has been mentioned that at the time of execution of the agreement dated 30.08.2007, the respondent no.1 was present alongwith her father and in front of her, the said agreement was signed between the respondent no.1 and the present petitioner. He further submits that, thus the execution of the agreement has been admitted, therefore, the petitioner can also prove the conditions of the agreement by adducing 'secondary evidence'.